Legal View: Derogatory words can reflect hostility

By Lindy Korn
The Daily Record Newswire

A former technician for Verizon Communications Inc. may pursue a sex discrimination suit against the company under Title VII of the 1964 Civil Rights Act, the U.S. Court of Appeals for the Second Circuit ruled, reversing a district court’s ruling for the employer. Pucino v. Verizon Communications Inc., No. 09-1306 (Second Cir. Aug. 13).

Pucino began working for Verizon’s predecessor company in 1982, and last held the position of field technician in Newburgh, N.Y., up until her retirement in December 2002. She worked at the Union Avenue Garage from 1995 through 2002, where only five of the 60 to 110 employees at any given time were women. Justin Hinspeter and Kevin Moore served as foremen from 1995-2001, responsible for assigning work and equipment to technicians and for monitoring the quality of their work. Pucino alleged Hinspeter and Moore:

Assigned her less desirable work than assigned to male workers; frequently allowed Pucino  to work alone in unsafe places in Newburgh; often refused Pucino’s calls for help when she contacted the dispatch; told Pucino to “get lost” and to “go kill herself” when she complained about males receiving help when they requested it; changed Pucino’s work assignment contrary to practice of allowing  technicians to work continuously in one area to become familiar with it; and on at least 10 occasions, skipped over Pucino when it was her turn for overtime work, as provided on a rolling basis.

Two of Pucino’s co-workers corroborated her account of Hinspeter’s behavior with  respect to her work assignments. Pucino also was denied access to tools that her male co-workers were provided, making it difficult for her to perform her work properly

Verizon foremen routinely denied Pucino access to bucket trucks, even though she was eligible to use them under company policy. Such trucks make it possible to reach overhead communication wires.

Male co-workers with less seniority were provided the trucks, her court papers state.

Pucino was reprimanded by her foreman for “being off the job” when she used public restrooms, although male co-workers who did the same thing were not reprimanded.

Pucino’s foremen called her a “bitch” and “stupid” and also told her to “go F--- herself.”

The district court granted Verizon’s motion for summary judgment. Pucino appealed on hostile workplace claim. The claim requires her to offer sufficient evidence enabling a trier of facts to find disparate treatment based on gender, resulting in a hostile work environment that was sufficiently severe or pervasive to alter the conditions of the  employment and create an abusive working environment. See Harris v. Forklift Sys. Inc., 510 U.S. 17,21 (1993).

The Second Circuit held that Pucino offered sufficient evidence to allow a trier to find that Hinspeter and Moore engaged in verbal attacks based on Pucino’s gender and that their “constant use” of the word “bitch” through the course of several years, in the context of  the present record, also was gender-based and reflected hostility towards women. See EEOC v. PVNF LLC, 487 F.3d 790 (10th Cir. 2007).

The Second Circuit also held that “the combination of disparate treatment and gender-based verbal abuse can support a further inference that the complained of instances of abuse involving the two foreman were in fact gender based.”

“There is little question that incidents that are facially neutral may sometimes be used to establish a course of sex-based  discrimination — for example, where the same individual is accused of multiple acts of harassment, some overtly sexual and some not.” Alfano v. Costello, F.3d at 375 (Second Cir. 2002).

The court found that “ a trier might easily find that the harassment and abuse was sufficiently severe to alter Pucino’s working conditions. Work assignments, the provision of tools, the use of a bucket truck, the issues as to use of restrooms, and the verbal abuse affected most of the major aspects of Pucino’s employment.”

The district court had assessed the same evidence as minor annoyances and inconveniences, so the clarity provided by the Second Circuit has is important for guidance.

The decision is a must-read for those who practice in the area of discrimination.